Herrington v. Napa State Hospital

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Magistrate Judge Jacqueline Scott Corley on 5/23/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 5/23/2017)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 DAVID F. HERRINGTON, 10 Plaintiff, 11 United States District Court Northern District of California Case No.17-cv-02637-JSC ORDER OF DISMISSAL WITH LEAVE TO AMEND v. 12 NAPA STATE HOSPITAL, 13 Defendant. 14 15 INTRODUCTION 16 Plaintiff, an inmate at Napa State Hospital, filed this pro se civil rights complaint under 42 17 18 U.S.C. ' 1983 against “staff” members.1 Plaintiff’s application to proceed in forma pauperis is 19 granted in a separate order. For the reasons explained below, the complaint is dismissed with 20 leave to amend. STANDARD OF REVIEW 21 Federal courts must engage in a preliminary screening of cases in which prisoners seek 22 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 24 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 25 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 3.) 1 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 2 F.2d 696, 699 (9th Cir. 1990). 3 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 4 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 5 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 6 which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although to state 7 a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to 8 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 9 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 11 United States District Court Northern District of California 10 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 12 13 14 15 16 claim for relief that is plausible on its face.” Id. at 570. To state a claim under 42 U.S.C. ' 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). LEGAL CLAIMS 17 18 19 Plaintiff alleges that he was “killed by 5 staff,” and that his heart was later “restarted” at a medical center. (ECF No. 1 at 3.) Plaintiff lists the names of these staff members, but he does not allege any other facts. In order to state a cognizable claim for relief against NSH staff members 20 for assaulting him, Plaintiff must allege more facts, including the circumstances surrounding the 21 assault, the conduct of each of the different staff members who participated in the assault, his own 22 conduct before, during and after the assault, and approximately when and where the assault took 23 24 25 26 27 place. Plaintiff will be given the opportunity to file an amended complaint in which he makes these allegations. In the complaint and a subsequent letter, Plaintiff requests to change the venue of his criminal proceedings from Humboldt County Superior Court to this Court. Plaintiff must make his request for a change of venue in Humboldt County Superior Court, not in federal court. 28 2 CONCLUSION 1 2 1. The complaint is dismissed with leave to amend. Plaintiff shall file an amended 3 complaint within twenty eight (28) days from the date this order is filed. The amended 4 complaint must include the caption and civil case number used in this order (No. C 16-2876 JSC 5 (PR)) and the words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page. 6 Because an amended complaint completely replaces the original complaint, see Ferdik v. Bonzelet, 7 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material from the original by 8 reference; he must include in his amended complaint all the claims he wishes to pursue. Failure to 9 amend within the designated time and in accordance with this order will result in the dismissal of 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 this action. 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address.” He also must comply with the Court's orders in a timely fashion, although he may request an extension of time provided it is accompanied by a showing of good cause and it is filed on or before the deadline he wants to extend. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: May 23, 2017 19 JACQUELINE SCOTT CORLEY United States Magistrate Judge 20 21 22 23 24 25 26 27 28 3

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